May 2022: Worried or Wondering?

You’ve been busy focusing on what matters most.

We have been handling the rest.

Here is a summary of some of the more interesting or frequently asked questions we received from you this month.

Legal Ethics

  • A potential new client called me today. But the potential new client already has a lawyer and wants to talk to me about changing counsel and getting a second opinion. Can I talk to them even though they are represented by a lawyer? Yes, a lawyer may communicate directly with a represented person if that person is seeking a “second opinion” or replacement counsel. Learn more about who you can talk to and when here.
  • May my law firm offer the client use of a company or broker to finance the legal fees? Sure, the Rules of Professional Conduct do not prohibit such arrangements, but the lawyer should take care to make the appropriate and necessary disclosures.
  • Do I need to have a LSBA filing number on my radio advertisement? Yes, unless the ad is exempt from the filing and review process. Lawyers are permitted to publish lawyer advertisements. But the Louisiana Supreme Court has adopted (and recently amended) some of the most complex and indecipherable advertising rules in the country. And now the Louisiana Legislature is (again) attempting to get into the business of regulating lawyer advertising. Recently, we’ve witnessed the Office of Disciplinary Counsel and the Louisiana Supreme Court adopt an unprecedented and aggressive stance on the investigation, prosecution and discipline of lawyers for substantive and technical advertising violations. Here are few simple tips to help you work towards compliance with the Rules of Professional Conduct:

Most advertisements need to contain the full name of a lawyer, the city where the office if located, and the newly required LSBA filing number. Lawyers can get the number here if they pre-file their ads online. Even previously approved and published ads need to display a filing number if the advertisement is still in circulation.

Advertisements cannot promise results. You would be shocked to see what the LSBA believes promises results…

Advertisements referencing a past success or displaying a client testimonial must include a disclosure like “results may vary” or “past results are not a guarantee of future success.”

Don’t make the public utilize a magnifying class in order to read your required disclosures.

Lawyers routinely engage in creative advertising and marketing campaigns. Think cars wrapped in advertising banners, town halls, and informational booths at festivals. Generally, these are permissible activities but always make sure your advertising complies with the Rules of Professional Conduct and neither you nor your employees cross the line into soliciting new clients.

Advertising on social media? It is a little like the Wild, Wild West out there. I predict the Louisiana Supreme Court, the LSBA, and the ODC will eventually turn their attention to attempting to regulate lawyer’s content on Facebook and Instagram.

Lawyers Behaving Badly

Judges are human, too, and are certainly susceptible to empathizing with the people affected by cases in their court. Nonetheless, judges cannot communicate with an interested party to a case over which they preside even when the interested party initiates the conversation.

Freedom of speech is a fundamental right that allows for open communication and the exchange of ideas. That is, unless you are a drunk lawyer openly criticizing a judge at a bar function.

Lawyers participating in remote court proceedings and meetings must be vigilant to not only avoid potentially personally humiliating experiences, but also to avoid violations of the Rules of Professional Conduct. To this end, don’t coach your client on the stand via messenger apps during a virtual trial. Further, don’t eavesdrop on confidential attorney-client communications that you may overhear during remote proceedings.

No lawyer wants to receive an envelope from the Office of Disciplinary Counsel containing a complaint. Although the Office dismisses approximately 80% of the complaints it receives, the anguish associated with being accused of misconduct and the time lost gathering old file materials, preparing a written response and submitting to a sworn statement are bruises that remain even after a dismissal. Here are some tips to avoid the complaint in the first place.

Try not to behave badly. But if you do, take comfort in knowing that the Louisiana Supreme Court recently amended the rules governing the available sanctions for lawyer misconduct.

Practice Tips

You would not want an unlicensed doctor operating on a loved one. Would you want a non-lawyer volunteer practicing law? At least in New York, lawyers need to make some room in the practice for non-lawyer advisors.

Many lawyers share office space with other lawyers. Sharing office space has many benefits. Sharing office space can, however, be an occupational hazard. Here are some tips for sharing office space with other lawyers when the lawyers are not part of the same firm.

Louisiana law does not require lawyers to carry malpractice insurance. Although Louisiana lawyers are not required to carry malpractice insurance, it is readily available. Moreover, most policies issued in Louisiana cover the cost of disciplinary proceedings, including the fees of disciplinary defense counsel. This coverage is supplementary and in addition to the policy limits of liability; it typically is not subject to the deductible.

A lawyer who seeks to withdraw from the representation of a client involved in litigation typically must seek permission of the presiding tribunal to do so. Rule 1.6(b) permits such disclosures to the extent “reasonably necessary” to comply with law or to respond to “allegations” concerning the lawyer’s representation of the client. See La. Rules of Prof’l Conduct, r. 1.6(b)(5-6). Always remember that there are limits as to what a lawyer can and cannot disclose in attempting to withdraw.

Worried? Wondering? Just Ask.

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